Year:    2008

Author:    Gramm, Christof

Die Verwaltung, Vol. 41 (2008), Iss. 3 : pp. 375–404

Abstract

As a result of the historical geopolitical changes that occurred in 1990, the security situation in Europe has changed fundamentally. Accordingly, the functions and duties of the German Federal Armed Forces have also changed. Up until now, the “transformation“ of the German Federal Armed Forces has been based on traditional legal rules, which are expressly regulated by the Constitution, or Basic Law (Grundgesetz), through the socalled “Wehrverfassung“, that part of the Constitution that addresses both the armed forces and emergency powers. These provisions have remained unmodified since the 1960s.

In the light of the entirely different security situation that exists today, a great deal of interpretation has been required to bring the Wehrverfassung in line with the current reality. This refers not only to the interpretation of the constitutional definition of defense but also, for example, to the question of constitutional limitations on the missions of the armed forces beyond the scope of the Basic Law, especially on the high seas as well as in cases of rescue and evacuation of persons from conflict areas.

Additionally, in the field of domestic security the role of the German Federal Armed Forces in the new security architecture is not yet sufficiently precise in every detail. The landmark judgment of the German Federal Constitutional Court concerning the Aviation Security Act (Luftsicherheitsgesetz) did not resolve the problem but rather raised a number of new questions.

The time has come for the legislature, which has the power to change the Constitution, to modernize the Wehrverfassung. Only such an amendment to the Basic Law will ensure strict adherence to the text of the Wehrverfassung and reinforce the principles of the normative power of the Constitution and constitutional honesty.